Marcel Andre Nauer v Peter James Batterham

Solicitors: Esplins Solicitors - Plaintiff File Number(s): 2020/71906

Judgment

1. HIS HONOUR: By summons, issued on 5 March 2020, the plaintiff (Nauer) moves the Court for an order under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (the Act) that the defendant (Batterham) be prohibited from instituting proceedings in New South Wales against Nauer.
2. This application is closely connected to proceedings commenced by Finsec as Trustee of the Batterham Retirement Fund against Nauer: Finsec as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238 (the principal proceedings). For reasons which appear in that judgment, which will be delivered immediately before this judgment, the principal proceedings now stand dismissed.
3. References below to sections are to the Act.
4. The relevant sections are ss 4, 6, 8, and 13(1). They provide: 4 Meaning of "proceedings" In this Act, proceedings includes: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and (b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings. 8 Making of vexatious proceedings order (1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia. (2) For the purposes of subsection (1), an authorised court may have regard to: (a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and (b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and (c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995. (3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons: […] (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings; […] (7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person […] 13 Contravention of vexatious proceedings order prohibiting institution of proceedings (1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings: (a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and (b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16. […]